Can an employer compel compulsory vaccination? If yes, are there any exceptions or special circumstances that an employer must consider?
No, employers can not compel compulsory vaccination against COVID-19.
In Belgium, an employer can impose vaccination on employees only in limited sectors and for specific employees listed in the law (e.g., in the medical sector).
To date, the compulsory vaccination concerns only three specific vaccines: hepatitis B, tuberculosis and tetanus. At the moment, COVID-19 has not yet been added to this list.
However, COVID-19 was recently added to the list of "biological agents" listed in the Belgian Welfare Code. It is a transposition in Belgian Law of EU Directive 2020/739 of June 3, 2020.
The addition of COVID-19 to the list of biological agents creates certain obligations for the employer.
Among these obligations, the Welfare Code provides that if the risk analysis carried out by the employer reveals that employees are exposed or likely to be exposed to biological agents in the workplace, the employer has the obligation to give them the opportunity to be vaccinated if they are not immune and if the biological agents in question are biological agents for which an effective vaccine exists.
Currently, in the absence of an available effective COVID-19 vaccine, the employer cannot implement this obligation. If an effective COVID-19 vaccine is found in the coming months, the employer should give employees the opportunity (but should not force them) to be vaccinated if the employer's risk analysis shows that employees are exposed or likely to be exposed to COVID-19 in the workplace.
Can employees refuse to be vaccinated - how does this balance against the freedom of choice and the obligation to provide a safe work environment?
Yes, employees can refuse to be vaccinated as currently, there is no obligation for employees to be vaccinated against COVID-19.
Although the employer must ensure that the work is carried out in appropriate conditions in respect of the safety and health of the employees, this does not allow him to force employees to be vaccinated.
In the event of a refusal can an employee be dismissed for refusal to comply with such a vaccination policy - will that constitute just cause for termination?
No, since employees are not required to be vaccinated, their refusal to be vaccinated could not constitute a just cause for termination.
A termination motivated by the refusal to be vaccinated could constitute a “manifestly unreasonable” dismissal (in this case, the dismissed employee could be entitled to compensation of between three and 17 weeks’ salary) and/or a discriminatory dismissal (discrimination on the basis of the state of health and/or on the basis of the employee’s philosophical convictions. In the case of discrimination, the employer risks being sentenced to a supplementary indemnity of six months of salary).
What benefits or accommodations do employers have to make for vaccinated employees?
Since vaccination against COVID-19 has not been made compulsory by the government, as an employer you can neither reward the employees who have been vaccinated nor impose certain sanctions or deny certain benefits to those who have refused to be vaccinated.
Moreover, the vaccination status of an employee is health data which, in principle, cannot be requested by the employer.
Can vaccinated employees refuse to work in the same vicinity as employees who are not vaccinated?
No, employees cannot refuse to work in the same vicinity as employees who are not vaccinated. This would actually constitute refusal to work.
In your country, are employers required to provide paid leave for employees to get vaccinated?
Yes, employers are required to provide paid leave to allow employees to get vaccinated. The employee who wants to be vaccinated has the right to short leave for the time necessary to be vaccinated. The right to short leave means that the employee may be absent from work without loss of pay if he is vaccinated against the coronavirus COVID-19 during working hours. The employee has this right during the time needed for the vaccination. This includes both the time spent at the vaccination center and the time needed to travel to and from the location where the vaccination will take place. If the employee's various vaccinations take place during working hours, the right to short leave shall be granted for each required injection.
Gaël Chuffart, CMS Belgium